Messrs. Edmund D. Adcock and George I. Haight, both of Chicago, Ill., for appellant.
Messrs. Solicitor General Mitchell, of Washington, D. C., and Assistant Attorney General Galloway, for the United States.
Mr. Chief Justice TAFT delivered the opinion of the Court.
The appellant sued the United States in the Court of Claims for $30, 697.73, for breach of a contract made by it with the United States for certain construction work at the government nitrate plant No. 2 at Muscle Shoals, [271 U.S. 121, 122] Ala. The work was done and the contract price paid. The amount here sued for was made up of nine claims for damages for breaches and extras. The Court of Claims found against the claimant on every cause of action alleged. Appeal to this court relates to only two of them.
The first is for $3,059.65, and is based on the alleged failure of the United States to furnish a right of way as stipulated in the contract for use in hauling materials to the place of construction.
After providing that the contractor should furnish certain materials for construction, the contract read:
Finding No. 2 by the court is:
What the government agreed to furnish was a right of way, not a railroad for transportation. It agreed that ingress and egress by this right of way should, at all times during the performance of the contract, be given the contractor, and such ingress and egress were afforded it. The defective track on the right of way was evident to the contractor when it made the contract, and the reasonable construction of the contract is that the contractor, in order to avail itself of the right of way, with constant ingress and egress, took over the track as it was as part of the equipment for transportation, just as he did the locomotive and cars, and as it found it, with sole responsibility for placing it in working condition and maintaining it for its use. It is clear that the Court of Claims was right in rejecting this claim.
The other claim was for damages for delay by the government in arranging for the contractor's start upon the [271 U.S. 121, 124] work. The contract provided that the work should be commenced on June 10, 1920, and by that time the contractor had its executive office force at the plant. The contractor was able to begin work on June 13. The delay resulted from the inability to get material issued to the contractor. The actual amount expended for salary and services to the persons kept waiting was $360. No complaint and no protest were made by the contractor at the time, and no claim was filed by the contractor until March 14, 1921. The holding of the Court of Claims was that, because it did not satisfactorily appear that the delay was due wholly to the government, and in view of the absence of a claim or protest for nine months thereafter, the claim should be rejected. We concur in this.